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OCDW 02.02.15

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

OKLAHOMA

Clifford Eugene Teel v. State, No. C-2014-139 (Okl.Cr., January 28, 2015) (unpublished): Guilty Pleas: In this certiorari appeal, the Hon. Thomas C. Landrith (Pontotoc County) is reversed and certiorari granted because he failed to inform Teel of the proper punishment range under the statutes for the crimes of lewd molestation, forcible sodomy, and indecent exposure.

Phillip Anthony Sloan v. State, No. F-2014-169 (Okl.Cr., January 28, 2015) (unpublished): After-Formers (Enhancement): Sloan was convicted by jury in Tulsa County (the Hon. Tom C. Gillert, presiding), of Possession of a Firearm AFCF and KCSP, both AFCF x 2. The State used a prior conviction (Possession of a Stolen Vehicle from 2000) both as a predicate to prove the Firearm count and to enhance his sentence. The Court found that the dual use of the same conviction was error (but not plain error requiring relief for Sloan because he had plenty of other priors to do the job).

Sharleen Thelma Nickle v. State, No. F-2013-910 (Okl.Cr., January 23, 2015) (unpublished): Hearsay; Confrontation and Cross-Examination: Nickle was tried by jury in Grady County (the Hon. John E. Herndon, presiding) and convicted of Possession of a Precursor w/Intent to Manufacture a CDS (Meth) AFCF x 1. The investigating officer gave overview testimony of the investigation, including the fact that he was advised by others that Nickle had attempted to purchase pseudoephedrine at Wal-Mart. The Court found that this was error, but harmless. The key issue in the case was whether the transaction log for pseudoephedrine sales constituted a business record for purposes of exceptions to the hearsay rule. It did (also, the introduction of the log did not violate the Confrontation Clause because the records are not testimonial).

Eric John Melton v. State, No. F-2014-105 (Okl.Cr., January 26, 2015) (unpublished): Search and Seizure (Impound & Inventory): Melton was tried by jury in Tulsa County (the Hon. Tom C. Gillert, presiding) and convicted of Trafficking AFCF x 2 and Possession of CDS w/o Tax Stamp. The Court affirmed, but I include the opinion here because it contains a good explication and summary of the law regarding impoundment and inventory searches.

Ricky Ray Malone v. State, No. PCD-2014-969 (Okl.Cr., January 30, 2015) (unpublished): Sealed Documents; Habeas Corpus (State Habeas & P.C.): This is an order in a capital case denying a successive application for post-conviction relief and motion to seal. Almost all of these petitions are denied (without even a response from the State), but I included this one because it contains a good explication of the legal standards for IAC claims in post-conviction, and also addresses an attempt by Malone to seal part of his factual presentation (dealing with his childhood issues of sexual abuse and incest). The Court noted the proper way to move to seal a document (or portions of a document) and that Malone had failed to follow the proper procedures.

An unpublished order from the Tenth Circuit in an Oklahoma capital case has received some press because of the way in which Judge Jerome Holmes has handled himself. Julius Darius Jones sought habeas relief and drew a panel in the Tenth Circuit consisting of Judges Holmes, O’Brien, and Briscoe, C.J. In my experience reading opinions from the Court and arguing cases there, I do not think that a more unfavorable panel could have been assembled for Mr. Jones. He was of course denied relief by this bunch.

But, as it turned out, Judge Holmes (at a time when he was a federal prosecutor) had penned an opinion piece in The Daily Oklahoman in which he had expressed an opinion on the Jones case, and had concluded that Jones “deserved to die.” This, from the judge who was one of the three deciding the fate of Jones in court. It must have slipped his mind when he was deciding the case and he forgot to recuse himself. It did not get past defense counsel, though, Assistant Federal Public Defender Madeline S. Cohen, who brought it to the attention of the panel via a petition for rehearing, which was granted by the two remaining judges after Judge Holmes, belatedly, recused himself from the case. Jones will have his case heard before a different panel, thanks for perceptive and vigilant defense counsel.

United States v. Alondo Laroyne Gay, No. 13-6247 (10th Cir., November 12, 2014) (Published) (Gorsuch, Seymour & Phillips) (W.D. Okla., Judge DeGiusti): Sentence Modification: Gay sought to use the sentence modification statute to advance collateral attacks on his original sentence. The panel held that there is no authority allowing this.

United States v. Jeffery DeWayne Morrison, No. 13-7051 (10th Cir., November 13, 2014) (Published) (Gorsuch, Seymour & Phillips) (E.D. Okla., Judge White): Supervised Release: Sentence of 120 months for possession of material involving sexual exploitation of minors was procedurally reasonable, and special conditions of supervised release (including a ban on the use of a camera and the internet) are affirmed.

United States v. Adrian Hernandez, No. 13-1453 (10th Cir., November 14, 2014) (Gorsuch, Sentelle, Senior Circuit Judge for the D.C. Circuit sitting by designation & Murphy): Contempt: Contempt conviction of defense counsel, citing him for $2,000.00 for taking a family vacation and missing a sentencing hearing, is affirmed.

UNITED STATES SUPREME COURT

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”

–Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

The Court has granted certiorari in an Oklahoma capital case to tackle the subject, once again, of whether the method of lethal injection comports with the Constitution. The case is Glossip v. Gross, No. 14-7955, and it is set for oral argument on April 29, 2015. Lethal Injection.Org, operated by the U.C. Berkeley School of Law, is keeping the pleadings neatly in one place. In light of the certiorari grant by SCOTUS, the Attorney General has asked the Court to stay all pending executions in Oklahoma, and the Court has in fact issued a stay to all three (Richard Eugene Glossip, John Marion Grant, and Benjamin Robert Cole).

Mark A. Christeson v. Don Roper, Warden, No. 14-6873 (U.S., January 20, 2015) (per curiam): Habeas Corpus (SOL & Equitable Tolling): Appointed counsel missed filing deadlines under the AEDPA and Christeson sought conflict-free counsel to argue equitable tolling, which the district court and the Eight Circuit denied. The Court reversed in this per curiam opinion, holding that the decisions were in conflict with Martel v. Clair, 565 U.S. _ (2012).

OTHER CASES OF NOTE

United States v. Robert Allen Hill, No. 13-4806 (4th Cir., January 13, 2015): Supervised Release; Search and Seizure (Probation and Parole): Hill faced conditions of supervised release that required him to notify his probation officer if he moved, and to permit the probation officer to visit his home at any time and confiscate contraband in plain view. Officers suspected him of moving without notification and obtained a warrant for his arrest, and executed it at his new home. However, rather than look for contraband in plain view, police did a walk through and had a drug dog sniff around the apartment. The panel held that this was unconstitutional.

United States v. Jose Torres-Perez, No. 14-10154 (5th Cir., January 29, 2015): Federal Sentencing Guidelines (Acceptance of Responsibility): Guilty pleas to illegal re-entry were timely (permitting the Government to avoid preparing for trial), but the Government refused to move for a reduction for acceptance of responsibility. On appeal, the Government conceded error, but argued that the error was not preserved sufficiently and was harmless. The panel disagreed and reversed.

VICTORIES

BRET BURNS, Chickasha, and EDDIE WYANT, Enid, two former District Attorneys(!!) represented the accused in Garvin County recently and defended him against a charge of Negligent Homicide—and won a verdict of not guilty. Good work, Bret and Eddie!

MICHAEL JOHNSON & BLAYNE J. ARMENDARIZ, OKC, won a not guilty verdict in Oklahoma County in a murder/robbery case where the client has been held in jail for 680 days. The crime involved a drive by shooting at a barbershop but little evidence other than a vague and contradictory eyewitness description. Nice work, Michael and Blayne!

MIKE MANNING, Tulsa, won an acquittal last Friday for a client accused of shooting his girlfriend’s brother. Good job, Mike!

TROOPER KILLED: One OHP Trooper was killed and another injured when they were hit by a vehicle while investigating an overturned semi on I-40.

PARDON AND PAROLE BOARD: The three new members to the Board appointed by Gov. Fallin: a former prosecutor in Oklahoma County under Bob Macy and two former Oklahoma City P.D. cops, including Macy’s son. The result: a 9 percent approval rate as opposed to 36 percent a year ago.

OKCPD OFFICER CHARGED: Officer Bryant Holloway has been charged with misdemeanor negligent homicide for engaging in a high-speed pursuit of a speeder that ended in a fatality car wreck.

DOJ SETTLES SUIT: DOJ has settled a lawsuit after being sued by a New York woman when the DEA used information and photos from her cell phone to set up a fake Facebook page in order to investigate drug dealers.

GLOSSIP WORRIED ABOUT EXECUTION: Although the recent execution of Charles Warner seemed to go off without a hitch, next up in the death chamber is Richard Glossip.

NEW LOOK FOR OSCN: The OSCN web site has been re-vamped. I think it looks clean and a little bit better than the old one.

NO-SHOWS AT SOTUA: Three Justices of the Supreme Court were absent from the State of the Union Address: Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito.

FINANCE SECRETARY ARRESTED: Preston Doerflinger, the Oklahoma Secretary of Finance, was arrested last week for APC after what appears to be a domestic argument.

MASHBURN APPOINTED: Gov. Fallin has appointed District Attorney Greg Mashburn to the Oklahoma Bureau of Narcotics and Dangerous Drugs Control Commission.

JAIL CALL: A prisoner’s phone call from jail, asking another person to remove some bombs from a residence, resulted in the discovery of a large cache of explosives.

WARNER LETTER: The Oklahoman received a letter from death row inmate Charles Frederick Warner, just days after his death which describes the night his execution was stayed initially.

FACIAL RECOGNITION SOFTWARE: Police are starting to use this software, so do not be surprised when they start taking photographs of citizens for innocuous things like traffic stops. Also, FOIA requests have uncovered documents that reveal a massive program by the DEA to track citizens using their license plates.

COURTHOUSE NAME: Sen. Jim Inhofe has introduced legislation to name the federal courthouse in the Western District (Oklahoma City) after the late Judge William J. Holloway, Jr.

BIG BUST: OHP seized 300 pounds of marijuana in a drug bust from a traffic stop on I-40 in Custer County.

JUDICIAL CHANGE-UP: After 44 years (!!) on the bench as the municipal judge for the City of Duncan, George W. Sherrill has retired; and will be replaced by former district judge Joe Enos.

GOOD RULING: Associate District Judge G. Brent Russell (Stevens County) has rule in a capital case that victim impact statements will not include a recommendation as to the sentence. The ruling is notable because there is tension between the Tenth Circuit and the OCCA on this issue.

WACKY CRIMES

An enterprising man in Clinton, Oklahoma, used jumper cables to steal power from the Public Service Company; two imbeciles tried a Dukes of Hazzard style hood-slide across a police car, only to be recorded by the dash cam; and this genius, with only days to go on his jail sentence, sent a threatening letter to the district attorney’s office, which as you might guess, means that he is still in jail.

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